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The wheels of justice are prone to turn slowly. Anyone who has ever had to deal with the courts can pretty much verify that. Even routine litigation can take up to a decade—or longer—for resolution.

So, when The 2nd Circuit Court of Appeal denied a motion by Mangham contractor Jeff Mercer to recuse Chief Judge Henry Brown at 10:23 a.m. on August 3, 2017, it was more than a little surprising when Judge Pro Tempore Joe Bleich of Ruston was able to whip out a three-page supporting opinion—drafted, neatly typed and filed by the clerk—two minutes later, at 10:25 a.m.

In fact, Mercer’s attorney, David P. Doughty of Rayville, is of the opinion that it’s simply impossible and that “[t]he logical explanation is that this supporting opinion was drafted prior to the hearing ever occurring,” which might indicate to those familiar with the machinations of the courts to conclude that someone within the 2nd Circuit was not quite playing by the rules.

By examining the timeline included in the link at the bottom of this story, one can see in the sixth and seventh entries that the order to deny the motion was issued at 10:23 a.m. on August 3 and Bleich’s supporting opinion filed by the clerk at 10:25 a.m. that same day.

One can also see how the principals involved probably thought Mercer would never be privy to the internal records of the court which revealed the expeditious manner in which Bleich’s supporting opinion was generated.

But they obviously underestimated the Mangham contractor who has already been forced out of business by DOTD and the 2nd Circuit and by this time, had nothing to lose by pursuing a string of public records requests which led to revelations of skullduggery on the part of Brown and his law clerk, Trina Chu.

Both Brown and Chu would be gone in little more than a year.

A little background may be in order for Bleich. His BIOGRAPHY, as provided by the Louisiana Supreme Court, notes that he was assigned in January 2016 by order of the supreme court as judge pro tempore of the 2nd Circuit Court of Appeal to fill a vacancy created by a retirement. He was scheduled to serve from January 14 through April 30, 2016 or until the vacancy is filled, which occurred first. But in August 2017, of course, he was still serving.

Bleich received his undergraduate degree from Louisiana Tech University and his law degree from LSU Law School and served as a district court judge for the Third Judicial District Court (Lincoln and Union parishes) from 1982 to 1996 when he was elected Associate Justice of the Louisiana Supreme Court to fill an unexpired term. He “retired” later that same year when he lost his bid for election to a full term and has practiced law in Ruston and served as a pro tempore judge in various district courts.

Bleich wrote a flowery three-page supporting opinion complete with legal “research,” peppering it with effusive praise for Judge Brown, finding “not a scintilla of bias by Judge Brown.”

Most observers would agree that that’s a lot of legal research and writing to cram into two minutes.

The only problem with that, besides, of course, the dubious speed with Bleich supposedly penned his gushing respect and admiration for Brown in his supporting opinion, was that it might have been a bit premature.

Little more than a year later, Brown would be gone from the bench, forced to resign after being SUSPENDED for his alleged behavior toward colleagues who were considering an appeal involving a close female friend of Brown’s.

He received an order from the Supreme Court to vacate the appeal court building in downtown Shreveport and to not take any judicial actions after complaints were filed that he had created a hostile environment toward colleagues who were hearing the appeal of a civil lawsuit against his friend who had been found liable for more than a million dollars in her own case which was also on appeal before the 2nd Circuit.

But the story, particularly as it relates to Mercer, goes much deeper and involves several officials in the 2nd Circuit and the possible illegal access of court files, including those in the Mercer case.

Mercer was a contractor on highway construction projects in Ouachita, Morehouse, Bossier, LaSalle and Caddo parishes—projects totaling nearly $9 million. He filed a complaint with the Department of Transportation and Development (DOTD) in which he claimed DOTD inspectors attempted to shake him down for kickbacks and equipment or risk not having his work pass inspection.

When his payment for his work was subsequently withheld, he sued and a 12-person jury in 4th Judicial District Court in Monroe unanimously AWARDED him $20 million on December 4, 2015. The official judgment was rendered on February 10, 2016.

DOTD appealed the decision to the 2nd Circuit and Chief Judge Henry Brown, along with Judges Jeff Cox and Jeanette Garrett composed the three-judge panel which heard oral arguments. Brown sat on the panel despite the fact that his father had worked for 44 years as a civil engineer for DOTD, a fact he neglected to disclose.

Brown even wrote the opinion of the 2nd Circuit panel which reversed the unanimous state district court verdict. That decision was filed on June 7, 2017. It was only after that decision that Mercer subsequently learned of Judge Brown’s failure to disclose his father’s employment with DOTD. He filed an Application for Rehearing and a Motion to Recuse and Vacate the Panel’s opinion.

It was that motion to recuse on which the August 3 order was issued at 10:23 a.m., followed by Bleich’s opinion of more than three pages was researched, drafted, typed and filed by the clerk within the next two minutes.

A year later, on August 22, 2018, Caddo Parish Sheriff’s Detective Doug Smith was told by 2nd Circuit Judicial Administrator Lillian Richie that she and other court employees had become aware that Trina Chu, Judge Brown’s clerk, “may have intentionally exceeded her authorization” while handling court documents on the court’s computer network.

Smith subsequently wrote a six-page report that reads more like a Trumpian chapter from the ongoing Ukraine investigation than routine court business with reports of unauthorized photocopies, access to restricted computer files, copying of confidential files onto a USB drive, and a string of emails that indicated ex parte communications (communications with respect to or in the interests of one side only or of an interested outside party to the exclusion of attorneys for the opposing parties) with Judge Brown’s friend Hahn Williams, the subject of the appeals case that ultimately got Brown removed from the bench.

One of those emails instructed Williams on how to transmit a document to her attorney so that it could not be traced back to her: “you can send the document to him (attorney) as is because it has no information that can be traced back to me on the document. Save it to a jump drive and give it to him so he won’t have to type much.”

Nor were the ex parte communications limited to Chu, Mercer claims, but also included Judge Brown receiving an email and documentation regarding his friend’s case. “The documents emailed to Judge Henry Brown were the confidential Second Circuit documents related to the Succession of Houston case…and actually sent to his Second Circuit email address,” Mercer says in his latest Petition to Annul (the 2nd Circuit Court) Judgment.

According to the 2nd Circuit panel’s decision, all three judges conducted a de novo review of the Mercer case on appeal. De novo appeal is an appeal in which the appellate court uses the trial court’s record but reviews evidence and law without yielding to the lower court’s ruling—as if the trial was being heard anew.

In Mercer’s case, there were nine volumes of exhibits comprising nearly 8,700 pages of required reading by each judge in a de novo review of the record.

“[t]he 2nd Circuit sign sheet for the record and exhibits, however, reveals that the panel, in making the de novo review, must have relied solely on Judge Brown’s review of the record,” Mercer claims in his petition to annul. “Judge Cox never checked out either the original or duplicate record or exhibits, and after the April 4, 2017, oral arguments, Judge Garrett never checked out the duplicate record. Therefore, it was impossible for the entire panel to have made a de novo review of all the trial testimony and exhibits that were seen and heard by the (district court) jury for almost a month,” Mercer says.

“Thus, the Second Circuit’s own records show that a full de novo review of the trial records/exhibits by all three (3) judges never occurred after the case was submitted after the April 4, 2017 oral arguments (emphasis Mercer’s). In essence, one judge (Brown) substituted his opinion for twelve unanimous jurors. Judge Brown wrote a fifty (50) page opinion for the panel, thirty-eight (38) pages of which was discussion of an alleged de novo review fact finding by the entire panel, which never occurred after the case had been submitted.”

The petition says that because of the ill practices of the court, “the June 7, 2017 decision of the Second Circuit Court of Appeal should be declared null and void, and the original unanimous jury verdict and judgment of February 10, 2016, should be reinstated and the Second Circuit [Court] of Appeal should be recused from any further hearing of this case.”

Mercer has also subpoenaed Lillian Ritchie for her deposition as well as digital copies of all documents obtained through forensic imaging that were copied from Chu’s computer as they relate to his case and all email messages of Jennifer Brown, Judge Brown’s former permanent supervising law clerk (and now general counsel for the 2nd Circuit) from August 26, 2016 through August 30, 2017.

If nothing else, Mercer has peeled back the layers of secrecy, for lack of a better description, that shroud the court’s procedures from the general public—procedures that citizens have the right to know about when they have business before the court.

We live in what is generally considered an open society and as such, we should know what our elected officials—including judges—do and how they do it. Secrecy should have no place here.

Mercer may have opened a tiny portal to how the system works and how more transparency should be the order of the day.

The fair administration of justice demands it.

To review the entire Mercer petition and the eye-opening exhibits, go HERE.

 

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There are certain procedures that must be followed in submitting public records requests to public agencies and with many agencies, if the procedure is not followed to the letter, you will find cooperation nonexistent.

Such is the case with Dr. Arnold Feldman, a pain management physician whose license was suspended by the Louisiana State Board of Medical Examiners which, just to be sure that he has been silenced, imposed a half-million dollar fine against him.

Dr. Feldman is unfamiliar with the proper method of making public records requests, as evidenced by a number of his requests that LouisianaVoice has obtained. For example, he has on occasion asked for general information instead of requesting specific documents.

In such cases the board, like many state agencies, is unforgiving, responding that his request is “overly broad” without explaining how—or by not responding at all.

It helps if you preface your request with: “Pursuant to the Public Records Act of Louisiana (R.S. 44:1 et seq.), I respectfully request the opportunity to review the following information:

Then you may wish to quote certain passages from the state’s public records statute, i.e. the penalties that non-compliance with the request carry. That puts officials on notice that you are knowledgeable about the public records statute.

And even though Dr. Feldman’s request did not follow these procedures, there are those occasions where the official response is so absurd that the official efforts to deny information becomes obvious.

For example, Dr. Feldman made one request that granted, did not follow protocol when he inquired as to whether or not Hammond attorney George M. Papale had ever been elected as a judge (he has not).

And while the request itself did not specifically ask for a public record, the board’s response in a JULY 9 LETTER by Dr. Vincent Culotta, executive director of the board, was laughable—and incorrect:

“…responses to public records requests are sometimes done with the assistance of counsel and we object to producing such information such information for your request on grounds of attorney-client and work product privileges.”

That is pure B.S. and Culotta knows it. And if he doesn’t, he should be fired because it’s part of his job to know.

Virtually every state agency, upon receiving any request for public records, runs that request by its legal counsel—meaning that practically all public records requests are done “with the assistance of counsel.”

By that line of reasoning, all public records requests could be refused.

A week earlier, in a JULY 2 LETTER, Dr. Culotta responded to Dr. Feldman:

“Specifically, you requested: ‘Has George Papale, who has been paid by this board, ever been an elected judge? Please provide me with a copy of his complete file.’

“I outline for you the objections of the Board to the scope of your request and specifically assert these objections to the production of any of the materials listed therein, if any exists, for the following, non-exhaustive reasons:”

One of the reasons given cited a state statute which provides that the “records and documents in the possession of any agency or any officer or employee thereof, including any written conclusions therefrom, which are deemed confidential and privileged shall not be subject to subpoena by any person or other state or federal agency.”

The key here is the phrase “which are deemed confidential and privileged.”

In the case of all public employees, from the governor on down, certain information is considered public information. This includes job titles, dates of hire and termination, salaries, official travel records, and expense vouchers (hotels, meals, mileage) and payments. In the cases of contract employees, copies of such contracts, terms of payment, job duties, invoices and payments are all considered public records.

How do I know this? I have made similar requests—and received documents—from many state agencies, one of the most frequent being the Louisiana State Police and the Department of Public Safety and Corrections.

In cases of denial of a valid request, the requester may file a lawsuit against the agency and the person making the decision to deny the records. If the requester prevails, the agency or individual making the decision can be fined up to $100 per day, plus court costs and attorney fees, for denial of each request.

How do I know this? I have been successful in three of four lawsuits over public records or illegal executive sessions of a public body.

As with the State Board of Dentistry, the Board of Medical Examiners is flexing its enforcement muscle against those who do not have the expertise or the financial resources to fight back. A half-million-dollar fine is overkill in every possible consideration. Doctors and dentists have been broken and their careers left in tatters because of similar oppressive, dictatorial actions and it’s long past the time they should be reined in.

And for the record, attorney George Papale is still under contract to the Board of Medical Examiners even after his—and his daughter’s—employment was TERMINATED by another regulatory board, the Louisiana Physical Therapy Board.

The two attorneys had their contracts terminated following widespread complaints about the board’s handling of sexual misconduct cases.

The board was ripped by lawmakers after it was learned it had failed to revoke licenses after physical therapists settled claims of sexual misconduct with patients.

Baton Rouge physical therapist Philippe Veeters was charged with sexual battery and accused of assaulting nine patients but instead of revoking his license, the board merely suspended his license for nine months, prompting State Sen. J.P. Morrell (D-New Orleans) to call the action a “slap on the wrist.”

Dr. Feldman should re-phrase his requests and if unsuccessful, seek a legal solution.

That’s not legal advice; it’s advice from one who has been down the same road on many occasions.

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That story about the north Louisiana contractor who was drummed out of business by the Louisiana Department of Transportation and Development (DOTD) and subsequently sued and won a $20 million judgment only to have it overturned on appeal just gets curiouser and curiouser with a couple of really bizarre developments.

Jeff Mercer, a Mangham contractor who had six contracts totaling nearly $9 million for which he was never paid, said his problems began when he complained that DOTD inspector Willis Jenkins attempted to shake him down to “put some green” in his hand or that Mercer place a new electric generator “under his carport” the following day.”

You can read the initial LouisianaVoice story by clicking HERE.

Mercer, armed with emails and other correspondence, filed suit against DOTD, claiming there was collusion among DOTD officials to “make the jobs as costly and difficult as possible” for him. A 12-person jury in 4th Judicial District Court in Monroe unanimously returned with an AWARD of $20 million in Mercer’s favor in 2015.

The jury, employing such terms as “collusion,” “bribery,” “extortion,” “conspiracy,” and “corruption,” not only held DOTD liable for damages, but also held four individual DOTD employees—Willis Jenkins, Michael Murphy, Barry Lacy and John Eason—personally liable.

But wait. Judge Henry N. Brown, as Chief Judge of the Second Circuit, had the responsibility of assigning cases and in Mercer’s case, he chose to assign it to himself—and wrote the decision that didn’t just reduce but obliterated the award in its entirety in OVERTURNING the lower court verdict.

Brown’s logic was that Mercer still had his contractor’s license and was still free to bid on state jobs. But when that same contractor is owed $9 million that the state refuses to pay him, he can’t meet payroll and he can’t purchase—or keep—equipment needed to perform the work. Nor can he afford worker’s comp and liability insurance.

Mercer says he was forced to sell off all his equipment—backhoes, trackhoes, dozers, trucks, etc. He estimates he lost another $2 million by being forced to sell his equipment for less than its real value. So, he is effectively out of business, Judge Brown’s opinion notwithstanding.

Meanwhile, a separate lawsuit in which Mercer still seeks payment of the $9 million that he’s never been paid makes its way slowly through the legal system.

The only problem with that was Judge Brown’s failure to recuse himself or even disclose his huge potential bias stemming from the fact that his father, Henry N. Brown, Sr., had been a civil engineer for DOTD for 44 years which “undermines the very fabric of our people’s faith in the judicial integrity of the Second Circuit Court of Appeal,” according to a MEMORANDUM in Support of Application for Rehearing and a Motion to Recuse and Vacate the Panel’s Opinion filed by Mercer’s attorney, David Doughty of Rayville.

At the trial, attorneys for both Mercer and for DOTD specifically asked each potential juror if they or any member of their family had ever worked for DOTD. “That was the first question asked every potential juror,” Mercer says. “If anyone answered yes, they were immediately excused.”

The case took 30 days to try, with thousands and thousands of pages of testimony. Yet, the Brown’s decision was rendered only 22 days after the appeal was filed, making it likely that he cherry-picked what he wanted to write since it was highly doubtful that the entire trial record could have been adequately reviewed in such a short time. The alternative would be that an attorney for DOTD drafted the decision for him and he signed off on it.

All of which can justifiably be labeled old news, already thoroughly rehashed on this site, right?

Right.

Except for a couple of recent news stories that loop right back into Mercer’s original claim of corruption, favoritism, bribery, extortion and otherwise unethical behavior by those in control of the dollars and the legal system.

Like this STORY from October 1 by KTBS-TV in Shreveport.

Judge Henry Brown was ordered by the Louisiana Supreme Court to vacate the Second Circuit Court of Appeal building in downtown Shreveport and to refrain from taking any further judicial actions after complaints that he had created a hostile environment toward colleagues who were hearing the appeal of a civil lawsuit against one of his friends from whom Brown had purchased a home.

Although Brown had recused himself from hearing the appeal because of the obvious conflict, members of the court found evidence that computer files where judges’ memos and drafts of opinions are kept had been hacked. A law clerk who worked for Brown was subsequently fired and banned from the courthouse.

And then there was this STORY by WAFB-TV in Baton Rouge that showed that one of the defendants in Mercer’s lawsuit may have had a too-cozy relationship with a DOTD contractor who manages to keep getting contracts through the agency despite repeated fines for failure to complete jobs on time.

The television station showed several photographs of DOTD engineer Barry Lacy on fishing trips, hunting trips, and at crawfish boils, and golf tournaments with officials of Coastal Bridge of Baton Rouge.

Lacy was one of four DOTD employees who were held personally liable in Mercer’s lawsuit.

DOTD Secretary Dr. Shawn Wilson said that while Lacy has no authority to award contracts to firms, he does make recommendations on such decisions.

It was not immediately clear if Lacy received the hunting and fishing trips or invitations to the crawfish boils or golf tournaments as gratuities but numerous OPINIONS by the Louisiana Board of Governmental Ethics have repeatedly said that “no public servant shall solicit or accept, directly or indirectly, anything of economic value as a gift or gratuity from any person or from any officer, director agent, or employee of such person if such public servant knows or reasonably should know that such person:

  • Has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency, or
  • Is seeking, for compensation, to influence the passage or defeat of legislation by the public servant’s agency.”

Meanwhile, Mercer, who was only trying to make a living, has been put out of business by a system that seems to consistently disregard the tenets of human decency, fair treatment, and equal opportunity in favor of preferential treatment, prestige, and power—with little or no consideration of the human consequences.

 

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First and foremost, there is nothing in the job description requirements that says the Secretary of the Louisiana Department of Health (LDH) must—or should—be a physician.

Nor does the state receive any benefit from the secretary’s maintaining a medical license or credentials and board certifications.

So, why should the head of the state’s largest department devote so much time, effort, and manpower on attempts to secure her professional credentials outside her state job?

Dr. Rebekah Gee was appointed Secretary of LDH by Gov. John Bel Edwards in January 2016 as he came to office. Prior to that, she was employed by the LSU HEALTH SCIENCES CENTER (LSUHSC) in New Orleans where she served as an obstetrician/gynecologist and as assistant professor of health policy and management.

So, it stands to reason that any attempt by LDH Secretary Dr. Rebekah Gee to pursue negotiations with LSU to retain her medical license, credentials, and board certifications through continued part-time employment as a physician at LSUHSC would be done on her own behalf and at her personal legal expenses.

Certainly, rank-and-file state employees must adhere to strict guidelines regarding the use of state computers, email addresses and telephone numbers—not to mention the taboo of calling on state attorneys to do private legal work on state time and state equipment.

Instead, following her appointment as secretary, she apparently directed the department’s legal counsel to pursue negotiations with LSU on her behalf on state time and using his state email address and signing off on his email correspondence with LSU as the executive counsel for the department.

Included in the email thread were negotiations on Dr. Gee’s behalf for her to retain her tenure at LSU (pretty difficult, considering her status was reduced to unpaid volunteer) and for LSU to pony up the premiums to keep her medical malpractice insurance from lapsing—a pretty generous financial windfall in its own right.

And all that doesn’t even address the apparent conflict of interest in her performing work for an agency overseen by—and which receives funding from—the department which she now heads.

As they say, rank does have its privileges and the series of emails back and forth between executive counsel Stephen Russo and LSU officials appears pretty rank.

Gee’s APPOINTMENT was announced on Jan. 5, 2016, and before she could even get settled into her office, the email campaign by Russo had begun in earnest.

At 3:12 p.m. on Jan 13, Russo emailed LSUHSC Chancellor Dr. Larry Hollier to ask “if there is anything you need from us regarding Dr. Gee. My understanding is that she will not be receiving compensation for providing services at the LSU clinic. If that is the case, that is a good starting point to make sure we are well clear of any issues…”

At 5:15 p.m. that same day, Hollier responded: “Dr. Gee will receive a ‘gratis appointment’ and will not receive compensation from LSUHSC. She would like to still see patients to maintain her medical licensure; we are happy to have her see patients. Would there be any ‘conflict of interest’ or other issues since, as Sect. of DHH (since renamed LDH), she ‘oversees’ Medicaid payments to LSUHSC?”

The following day, Jan. 14, LSUHSC General Counsel Katherine Muslow emailed Russo at 1:36 p.m. to say, “In addition to the prohibitions provided in the Governmental Code of Ethics, the incompatibility provisions of (state statutes) should also be reviewed for applicability.”

She then went on to list six “incompatibility provisions” which she seemed to feel would prohibit Dr. Gee from working even as a volunteer for an agency partially funded by the department that she headed.

On Jan. 15, Russo, still on the state clock at 1:28 p.m. and still on a state computer, wrote LSUHSC General Counsel Katherine Muslow and others from his state email account to ask that “y’all email or telephone us and let is (sic) know the legal relationship today between y’all and secretary gee (sic).”

At 1:40 p.m., Dr. Hollier emailed Russo to reiterate that Dr. Gee “is our gratis faculty with no compensation.”

Two minutes later, Russo, apparently having not fully digested the content of Muslow’s list of reasons why Dr. Gee could not work for LSU (and too excited to bother with punctuation), responded to Hollier: “Super so she is not contract or anything but like any other faculty just not compensated?”

He finally got around to responding to Muslow at 6:32 p.m. that day: “Good deal. I am sending to my ethics folks. I have not been talking with the attorney general and have not sought a formal ethics opinion.”

On Jan. 19, Russo was back at it early, emailing Hollier at 8:33 a.m. to discuss the termination of the contract between LDH and LSUHSC for the Medicaid Medical DIRECTOR position, the position Dr. Gee had held at LSUHSC. “Before we date and send the contract termination,” he wrote, “the Secretary (Dr. Gee) would like for me to confirm the following:

  1. Her current LSU title;
  2. Her tenure status;
  3. The dates when she can begin clinic.”

At 9:48 a.m., Hollier responded: “She is an Associate Professor, gratis appointment. She had tenure but loses that since she is not Full Time; but whenever she returns to FT (full time), I will simply restore her Tenure. She will arrange to see patients two half-days a month, starting I believe after the special session. I am waiting for final clearance from LSU System Counsel.”

The news about Gee’s loss of tenure must’ve thrown Dr. Gee and by extension, Russo, into a tizzy. On Jan 21 at 2:54 p.m., Russo emailed Hollier: “Can yall’s (sic) lawyers look at this tenure issue again? It is obviously a little worrisome that she would be ‘losing’ tenure. Personally, your word is good as gold to me but what if you have moved to greater adventures.”

“I am happy to have it reviewed again,” answered Hollier at 3:48 p.m., “but regs say tenure only for full time employees. I will see what other options might be available.”

So, bottom line, what we have here is the secretary of a state department:

  • Working for an agency over which her department has jurisdiction;
  • Attempting to retain tenure from her old job even though state regulations clearly say an employee must be full time to earn or keep tenure;
  • Attempting to have the state pay for her medical malpractice insurance;
  • Instructing a subordinate (legal counsel Stephen Russo) perform private legal work on state time and on state equipment on behalf of her efforts to retain private part time employment.

As the late C.B. Forgotston would say, you can’t make this stuff up.

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Physicians Health Foundation (PHF), which for years has abetted the Louisiana Board of Medical Examiners in targeting vulnerable medical practitioners in a manner reminiscent of the tactics employed by the Louisiana State Board of Dentistry, now finds itself in the crosshairs of State Sen. John Milkovich (D-Shreveport).

Both boards have for years flown under the radar of governors, legislators and the media but more and more, attention is being given to their near-autonomous rule by intimidation and extortion.

PHF, also known as the Healthcare Professionals’ Foundation of Louisiana (HPFL), is located on Bluebonnet Boulevard in Baton Rouge and it currently is about halfway through a three-year, $1.35 million contract with the Board of Medical Examiners to run a “Statewide Operations of Physicians Health Program.”

And, since the Board of Dentistry has been mentioned, it might be worth noting that PHF also is just over a year into a three-year, $287,000 contract with that board to “develop, create and administer the Dental Health Professional Monitoring Program.”

By its own admission in a lawsuit to be discussed later in this post, it is not a treatment facility. So, just what does PHF (or HPFL) do to earn its money?

Well, for the Board of Medical Examiners, it appears to extract huge fees from medical professionals (which includes doctors, physician assistants, podiatrists, medical psychologists, dentists and dental hygienists) who are found to have addiction problems or who the board deems to have committed other transgressions.

And since its contract with the Board of Medical Examiners includes dentists, it is unclear why there is a need for a separate $287,000 contract with the Dentistry Board.

But like the Dental Board, the Board of Medical Examiners has set itself up as accuser, prosecutor, judge and jury in investigating complaints and handing down its decisions. Again, like the Dental Board, the Board of Medical Examiners even conducts its own hearings whenever a doctor appeals one of its decisions.

And the board remains a stellar undefeated record in 20 years of reviews of its decisions that are appealed.

Which probably is the reason Sen. Milkovich feels the need for his SB 286, which would establish a Physicians’ Bill of Rights designed to protect their rights whenever they are brought under the scrutiny of the board. More about that shortly.

In addition to its ability to suspend licenses of medical professionals, the board wields a big stick in its ability to coerce licensees into signing consent agreements to enter into rehab.

And those consent agreements often come with large price tags in the form of fees and penalties. Many state regulatory boards, the Board of Medical Examiners and the Dentistry Board included, receive their budgets not from legislative appropriations but from membership fees and financial penalties assessed against members accused and convicted of violations, some of which, though minor, still carry large fines.

Doctors and other medical practitioners apparently are referred to the rehab centers by PHF (or HPFL) whose spokesperson indicated to LouisianaVoice that it has a list of approved facilities in Louisiana, Mississippi and Alabama, among others.

PHF’s $1.35 million contract with the Medical Board runs from Aug. 1, 2016 through July 31, 2019.

One of those rehab centers is PALMETTO Addiction Recovery Center in Rayville.

That facility became involved in a lawsuit in 2009 after one of its staff members. Dr. Douglas Wayne Cook became sexually involved with one of the center’s patients. The husband of the victim sued Cook, who is no longer with Palmetto but who does continue to have a private practice in Richland Parish.

 

Milkovich’s bill, already reported out of committee favorably, is scheduled to be brought before the entire Senate on Monday.

“Under Louisiana’s current board system, physicians often face an uneven playing field, rigged proceedings, and a stacked deck,” Milkovich said. “Licensed, dedicated and highly qualified professionals may have their licenses threatened, suspended, or revoked, based on false accusations, anonymous complaints, and spurious charges. Doctors are often administratively charged by the board without even being informed of the identity of their accusers, the evidence against them, or even the substance of the accusations brought against them. This injustice is compounded by the heavy-handed and inequitable tactics employed by some Board staff.

“We understand that there must be a fair and sound disciplinary process for physicians, to protect the public. However, the goal of board proceedings for physicians should be impartiality, fairness, and integrity—not intimidation, falsification, and inequity.

“The aim of SB 286 is to level the playing field, un-stack the deck and render the Board’s adjudication of doctors more transparent. Everyone deserves Due Process. And that includes doctors.”

The bill, according to the BATON ROUGE ADVOCATE, would require stricter communication requirements during board investigations and would require that the board provide physicians under investigation written notice of complaints within 10 days or receipt. Moreover, the bill would require that the board reveal the identity of the complainant and would prohibit ex parte communications by board members prior to a hearing on the pending investigation.

One critic of the board, Dr. Greg Stephens said criminals and terrorists receive “more due process than we give doctors.” He and his former boss, Dr. John Gianforte, said they were coerced into consenting to voluntary license suspensions and mandated substance abuse treatment without either being allowed to give their side of the story.

They were suspended following claims that Stephens allowed unqualified staff members to write and sign prescriptions in his name while serving as medical director at a clinic in Shreveport when in fact, the prescription pad was stolen by two employees and Stephens’ name forged. Gianforte said the two employees were fired and one was later charged by law enforcement authorities.

Milkovich even cited a case where a New Orleans physician practicing at Tulane Medical Center committed suicide last November. His license was summarily suspended in June following an investigation but was reinstated in October. By then, however, the doctor had lost privileges, positions and future opportunities as a result of the investigation, the senator said.

In another case, the family of another doctor filed suit against PFL when the doctor, informed that he had had tested positive for drug use, committed suicide a few hours later. The doctor’s family was told by PFL that its programs and personnel had statutorily qualified immunity from legal liability regarding their activities and that they were further protected by a release and a hold-harmless agreement with the Physicians Health Program.

RAMEY V. DECAIRE

PHF was successful in getting the Louisiana Supreme Court to rule that it was exempt under the peremptory exception of no cause of action and the family’s lawsuit was dismissed. PHF, apparently not satisfied with merely winning, then went after the family for legal sanctions, claiming their suit was frivolous and without reasonable good faith. The trial court denied PHF’s motion and PHF appealed. The First Circuit Court of Appeal upheld the trial court and assessed costs against PHF.

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